Hicks v. State, 2000-KA-01817-SCT.

Citation812 So.2d 179
Decision Date14 February 2002
Docket NumberNo. 2000-KA-01817-SCT.,2000-KA-01817-SCT.
PartiesGregory HICKS v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

H. Lee Bailey, Winona, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

Before McRAE, P.J., EASLEY and GRAVES, JJ.

EASLEY, J., for the court.

¶ 1. On January 22, 2000, Gregory Hicks (Hicks) was arrested for the murder of Danny Joe Rainey (Rainey) that occurred on January 21, 2000, in Montgomery County, Mississippi. On February 8, 2000, the Justice Court of Montgomery County bound Hicks over to the grand jury which indicted him. Trial commenced on October 16, 2000, before the Circuit Court of Montgomery County, Mississippi, Honorable Joseph H. Loper, Jr., presiding. The jury returned a guilty verdict. Hicks was sentenced to serve life in the custody of the Mississippi Department of Corrections. The trial court denied Hicks's motion for a new trial and, in the alternative, a judgment notwithstanding the verdict on October 18, 2000. Hicks timely perfected an appeal to this Court.

FACTS

¶ 2. Rainey, a black male, was murdered on January 21, 2000, in Montgomery County, Mississippi. Hicks, a black male, was tried and convicted for Rainey's murder. Several eyewitnesses testified at trial.

¶ 3. Valerie Brewer (Brewer), a nurse, saw three men arguing outside. Brewer was on her way to visit her patient, Miss Allian Jones. The argument escalated into a physical confrontation. Hicks shoved Rainey and held a butcher knife over his head. Rainey ran, and the third man walked away. Rainey stumbled and fell. Hicks then straddled Rainey. Rainey lay in a fetal position with his hands over his head. Rainey yelled, "No." Hicks kicked Rainey and yelled, "Die, n____r, die." Hicks stabbed Rainey with the knife numerous times. After stabbing Rainey, Hicks stopped and then resumed stabbing him. Brewer never saw a weapon of any kind on Rainey. Brewer had never seen Rainey before, but she had seen Hicks before when visiting her patient.

¶ 4. Lonza Williams (Williams) testified that on January 21, 2000, she was at the house of her cousin, Showanda Jones (Jones). Rainey was the father of Jones's baby, Lateesha Jones. Rainey and Hicks were involved in an argument over the child. Hicks, who lived with Jones, told Rainey he liked taking care of Rainey's baby. The argument became physical. Hicks went into the kitchen and got a knife. Rainey left the house to catch a ride with the mailman who was outside to get away from the argument. Rainey knew the mailman. Hicks followed him out the door.

¶ 5. Careesa Flemming (Flemming), another cousin of Jones at the house, hollered in a loud and scared voice for Williams to come help. Hicks was stabbing Rainey. Williams hollered for Hicks to stop. Hicks was in a position over Rainey who was on the ground. While stabbing Rainey, Hicks said that "he was tired of these punk ass n____rs coming down here trying to take over." Brewer did not see any weapon on Rainey. Rainey was trying to leave the altercation.

¶ 6. Flemming testified that Rainey and Hicks had been arguing about Jones's baby. Hicks told Rainey that he liked to hear the baby call him "daddy." After returning from the kitchen, the men began pushing each other and cursing. Hicks then started stabbing Rainey saying that, "I hope you die, motherf____r. I am tired of ya'll coming down here respecting— disrespecting my house, what I say. This is where I lay my head at." [sic] Rainey was on the ground on his back. Flemming did not see Rainey with any weapon. Rainey was between Hicks's legs. Flemming saw Hicks leave the victim and go inside the house with the knife. She did not see the knife again. Hicks got his coat and left through the bushes near the train tracks.

¶ 7. Williams saw the bloody butcher knife. Williams identified the butcher knife as her butcher knife that had been in the kitchen. Hicks offered to return the knife to Williams and stated that "he hoped he killed him." Hicks left the scene with the knife.

¶ 8. David Eldridge (Officer Eldridge), Chief of Police in Kilmichael, responded to the call about the fight and stabbing. Rainey was still alive when Officer Eldridge arrived, but he died while being transported to the hospital. Officer Eldridge was informed that the fight began over Rainey's child. Hicks made a telephone call to Officer Eldridge on January 21, 2000, at approximately 4:00 p.m. at city hall claiming that Rainey had tried to stab him with a fan blade. Officer Eldridge never discovered any piece of fan blade that Hicks initially claimed that Rainey used to stab him.

¶ 9. On January 21, 2000, Hicks was apprehended at the Greyhound Bus Terminal in Jackson, Mississippi, and transported back to the jail in Vaiden. Sheriff Kenneth Campbell (Sheriff Campbell) did not recall seeing any scratches on Hicks when he was apprehended. Later, Hicks claimed that Rainey had a brick. Sheriff Campbell searched the crime scene for any fan blade or a brick that could have been used by Rainey, but neither were discovered. On January 22, 2000, after waiving his rights by signing the rights form, Hicks gave a statement. Sheriff Campbell and Ellis Bevis witnessed the signature. The statement was taken immediately after the waiver statement was signed. Hicks's statement was read to the jury. Hicks did not take the stand in his own defense.

¶ 10. Harold Gunn (Gunn) was called as a witness on behalf of Hicks. Gunn had been the third man present that day at Jones's house at the time of the altercation. Gunn testified that he witnessed the initial argument, but he left to go to the store before Rainey was stabbed. Gunn claimed he never saw Hicks with any knife, but he stated on cross-examination that he heard Hicks rattle the knife in the knife drawer before going outside.

¶ 11. Dr. Steven Hayne (Dr. Hayne), state pathologist, testified about the autopsy he performed on Rainey. Dr. Hayne described Rainey's wounds as follows:

To the chest and abdomen there were three injuries. There was a scraping of the skin or scratch called an abrasion measuring approximately one-half inch located over the upper right chest wall. There was also the presence of two cuts in the skin, each consistent of a stab wound. One located on the upper left abdominal wall, and there was a second one located even slightly higher on the right abdominal wall. The two injuries measured approximately seven-eights of an inch to three-quarters of an inch. They were essentially slit like, and each was consistent with a sharp-edged instrument producing those injuries.

¶ 12. Hicks was found guilty of murder and sentenced to a term of life imprisonment. Aggrieved, Hicks raises the following issues on appeal:

I. Whether the verdict of the jury was against the overwhelming weight of the evidence.
II. Whether a new trial is required in the interest of justice.
III. Whether the trial judge should have granted the Motion for Dismissal of Charges because of a denial to the defendant of his Constitutional right to a speedy trial.
IV. Whether the trial judge erred in admitting the defendant's statement because of a failure to predicate that it was voluntary.
V. Whether the trial judge erred in denying the motion for the defendant to challenge the State's peremptory challenges to systematically exclude blacks from the jury.
VI. Whether the trial court erred in denying Hicks's Motion for a New Trial and in the alternative for a judgment of Acquittal Notwithstanding the verdict.

DISCUSSION

I. Speedy Trial

¶ 13. On appeal, Hicks argues that he was denied his constitutional right to a speedy trial. Hicks made a pre-trial motion for dismissal of the charges due to the denial of his constitutional right to a speedy trial. The motion was filed on October 16, 2000, stating that Hicks was arrested by the Montgomery County Sheriff's Department on January 22, 2000, for the charge of murder. Hicks was arraigned on April 25, 2000, and trial was set for October 16, 2000. Hicks states that he was incarcerated for 268 days, primarily in the Rankin County Correctional Facility awaiting trial. Hicks complains he suffered "worries and anxieties" from being incarcerated prior to trial on the murder charge. Hicks claimed he was having a problem with depression.

¶ 14. After being arrested, Hicks had his probation for a prior conviction revoked, and he was incarcerated to serve the terms of that sentence. Thus, the time preceding trial that Hicks was incarcerated was for the revocation of probation for a prior sentence not for the murder charge. Hicks's first indictment was fatally defective because it did not allege jurisdiction. Hicks was arraigned on the second indictment out of term. "Alleged speedy trial violations are examined and determined on a case-by-case basis due to the factual specifics of each action." Brengettcy v. State, 794 So.2d 987, 991 (Miss.2001). See also Sharp v. State, 786 So.2d 372, 377 (Miss.2001)

. The Court has "not set a specific length of time as being per se unconstitutional" in reviewing a constitutional challenge for lack of speedy trial. Brengettcy, 794 So.2d at 992.

¶ 15. This Court has recently examined the constitutional right to a speedy trial in Mitchell v. State, stating that pursuant to Miss.Code Ann. § 99-17-1 (2001), the 270 day speedy trial rule provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned. "The right to a speedy trial is guaranteed by the sixth and fourteenth amendments to the United States Constitution and Art. 3, § 26 of the Mississippi Constitution of 1890." Watts v. State, 733 So.2d 214, 235 (Miss.1999). "The constitutional right to speedy trial attaches at the time when the defendant is first effectively accused of the offense." Gray v. State,
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